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DOJ's Office of Professional Responsibility: Protecting Their Own

What are the odds that a federal prosecutor will be punished for prosecutorial misconduct?  The odds are about 50-to-1 that a prosecutor who is reported for prosecutorial misconduct will not receive even a slap on the wrist. Given that most prosecutorial misconduct goes unreported, the odds of getting away with misconduct are even better.  The numbers don't lie.     

When a federal prosecutor has allegedly committed prosecutorial misconduct, his conduct is reviewed by his colleagues.  Within DOJ is the Office of Professional Responsibility.  OPR's 2006 Annual Report (the most recent one available) is unfortunate reading.  Anyone who has suspected that DOJ does not take prosecutorial misconduct seriously will unfortunately have those suspicions confirmed.

First, the numbers:

In fiscal year 2006, OPR received 869 complaints and other letters and memoranda requesting assistance. OPR determined that 230 of the matters, or approximately 26%, warranted further review by OPR attorneys. OPR opened full investigations in eighty-four of those matters; the remaining 146, which are termed “inquiries,” were resolved with no findings of professional misconduct, based on further review, additional information from the complainants, responses from the subjects, or other information. When information developed in an inquiry indicated that further investigation was warranted, the matter was converted to a full investigation.

Of 869 complaints, less than 10% were even deemed worthy of an investigation.  Not bad, right?  Even if you're reported, the odds are clearly in your favor.  
Perhaps one will say that crank litigants make a lot of frivolous complaints. That would be wrong. Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.

Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined.  According to OPR, there is a crisis within the federal judiciary.  

Federal judges are making frivolous allegations of prosecutorial misconduct.  After all, federal judges found prosecutorial misconduct in at least 58 cases.  Yet OPR only found prosecutorial misconduct in 18 of those 58 cases.  (58-18 = 40 federal judges filing frivolous complaints.)

The numbers don't add up.  DOJ's Office of Professional Responsibility investigated less than 10% of all reported cases of prosecutorial misconduct.  While federal judges found prosecutorial misconduct in 58 cases, DOJ only found prosecutorial misconduct in 18 of those 58 cases.  It's pretty clear that the Department of Justice cannot be trusted to investigate itself.

Self-policing is a failure.  In 2009 alone, there have been nearly a dozen high-profile cases of prosecutorial misconduct.  If OPR continues its mission, those prosecutors can sleep easy.  The odds are clearly on their side.

Whether the rest of the American public can sleep so easily knowing that a prosecutor can violate our rights with impunity, is another matter.